Birmingham-Trussville Iron Co. v. Allied Engineers, Inc.

• Decision Date: 06 October 1932
• Docket Number: 7 Div. 124.
• Parties: BIRMINGHAM-TRUSSVILLE IRON CO. v. ALLIED ENGINEERS, INC.
• Court: Alabama Supreme Court

144 So. 1

225 Ala. 522

BIRMINGHAM-TRUSSVILLE IRON CO. v. ALLIED ENGINEERS, INC.

7 Div. 124.

Supreme Court of Alabama

October 6, 1932

Rehearing Denied Nov. 3, 1932.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action for trespass by the Birmingham-Trussville Iron Company against the Allied Engineers, Inc. From a judgment for defendant, plaintiff appeals.

Affirmed.

John S Stone, M. Leigh Harrison, and John S. Stone, Jr., all of Birmingham, and Goodhue & Lusk, of Gadsden, for appellant.

Dortch Allen & Dortch, of Gadsden, and Martin, Thompson & McWhorter of Birmingham, for appellee.

KNIGHT J.

Suit by the Birmingham-Trussville Iron Company against the Allied Engineers, Inc., to recover damages for certain alleged trespasses committed by appellee upon lands of appellant. Count 1 of the complaint sought recovery of the defendant for the statutory penalty for willfully and knowingly cutting trees on plaintiff's land between January 1, 1930, and May 10, 1930; count 2 claimed for trespass by defendant upon lands of plaintiff, and cutting timber thereon; count 3 claimed damages for trespass upon lands of plaintiff, and for willfully, wantonly, and intentionally cutting trees on said property; and count 4 was in form prescribed by the Code for the conversion of trees, the property of appellant, plaintiff in the court below.

From the pleading and the evidence in the cause, it appears that the Alabama Power Company, a power corporation organized and existing under the laws of the state of Alabama, and having the right and power as such corporation, to acquire by condemnation land, found it necessary or expedient to construct an electric power transmission line over and upon the lands of the plaintiff. To that end, the Alabama Power Company contracted with the defendant (appellee) to make for it a survey for the proposed electric power transmission line; that the survey was necessary for the selection of the most advantageous route for said proposed power line; that the appellee also contracted with the Alabama Power Company to construct said line; that the acts complained of in each count of the complaint were done by the appellee in making the said survey and in constructing the said power line.

It also appears that, after some of the acts complained of were done, but before any suit to recover damages therefor was commenced, the Alabama Power Company instituted in the probate court of Etowah county proceedings to acquire by condemnation the lands upon which the alleged trespasses were committed, and from which the trees were cut. The condemnation proceedings were filed on April 29, 1930, and the decree of condemnation in the probate court was entered on the 20th day of May, 1930, and the report of the commissioners awarding and fixing the amount of compensation to be paid by the Alabama Power Company to the plaintiff was approved by the court on May 28, 1930. From the order and judgment of condemnation, the Birmingham-Trussville Iron Company appealed to the circuit court. In the circuit court, on the 6th day of October, the appeal came on to be, and was, tried, and the court upon such trial, after duly considering the application, made and entered an order and judgment granting the application for condemnation. Thereupon a jury was impaneled to assess the "damages and compensation" to which the Birmingham-Trussville Iron Company was entitled "for the condemnation of certain ways, rights and rights of way and easements described in paragraphs 9, 10 and 11 of article 'Fourth' of such application (plaintiff's lands)." The jury awarded the said landowner the sum of $2,500, and this amount was paid to the clerk, and by that officer, prior to the filing of defendant's pleas in this cause, paid over to, and accepted by, the plaintiff.

The present suit was filed in the circuit court of Etowah county on September 2, 1930. Defendant's pleas were filed on the 12th day of February, 1932.

The plaintiff demurred to each of defendant's pleas, except the plea of the general issue, on numerous grounds. The court overruled the demurrers to pleas 2, 3, and 6, and overruled the demurrer to pleas 4 and 5 as addressed to count 2 of the complaint, but sustained the demurrer to pleas 4 and 5 as interposed to counts 1, 3, and 4 of the complaint.

If any one of defendant's pleas was good, as interposed to all the counts of the complaint, and if the evidence warranted the general charge for the defendant upon such plea, it would be error without injury, if the court improperly overruled demurrers of the plaintiff to the other pleas of the defendant. Bason v. A. G. S. R. R. Co., 179 Ala. 299, 60 So. 922; Mizzell v. So. Ry. Co., 132 Ala. 504, 31 So. 86; Wynn v. McCraney et al., 156 Ala. 630, 46 So. 854.

Stripping this case, as presented by the record on this appeal, of all technicalities and refinements, the one question presented is, May the owner of land, which has been acquired by due condemnation proceedings by a public utility corporation, invested with the right of eminent domain, after he has been paid, and has accepted compensation therefor, as fixed by the jury, recover damages, for alleged trespasses committed upon the realty so taken, and which alleged trespasses consisted of cutting and removing trees from the lands so acquired, the reasonable market value of which trees was litigated in the condemnation proceedings, and were included in the amount of compensation awarded the landowner? May the landowner, after having been paid an amount of money by the condemnor for the land, which also included the fair, reasonable market value of the trees cut and removed from the lands so acquired, thereafter prosecute to judgment a suit against the agent of the condemnor for the statutory penalty for cutting the said trees? These are the two concrete questions which this record presents for determination.

The original entry by the appellee upon plaintiff's land was made in the right of the Alabama Power Company, which company, clothed with the right of acquiring property by condemnation, had the authority, by its officers, agents, or servants, under section 7027 of the Code of Alabama, to enter upon said lands for the purpose of examination and making surveys for its proposed electric power transmission line, in order to select the most advantageous route. Said company, of course, was subject to liability for all damages occasioned by such entry to the lands of the plaintiff.

After appellee entered upon said lands, and before the condemnation proceedings were filed in the probate court of Etowah county, the appellee cut one hundred and forty-three of the oak and pine trees mentioned in the complaint, and five hundred of the oak, pine, and hickory trees were cut by appellee between the time that the application was filed and the time the compensation awarded by the commission appointed pursuant to said application was paid in the probate court. The other trees mentioned in the complaint were cut after the compensation fixed by the jury in the probate court had been paid into court and prior to October 6, 1931, and before the plaintiff accepted the award, and before the trial of condemnation proceedings in the circuit court.

Section 235 of the Constitution requires that municipal and other corporations invested with the privilege of taking property for public use shall make just compensation to the owner for the land so taken, and which must be paid before such taking, injury, or destruction. However, section 7027 of the Code authorizes public service corporations to enter upon private property for the purpose of making surveys, and selecting the most advantageous routes for their roads and lines, but this section specifically states that the corporation so entering and exercising such right is subject to liability for all damages done to the land.

In the case of Dancy v. Alabama Power Co., 198 Ala. 504, 73 So. 901, 902, this court, in considering the effect and scope of section 3493, now section 7027 of the present Code, held: "It is manifest from the plain terms employed in the statute as well as from the purpose it would subserve and effect that the rights therein conferred are predicated of the sovereign power to take, to injure, or to destroy the property of others through its appropriation and devotion to a public use. In Ala. Inter. Power Co. v. Mt. Vernon, etc., Co., 186 Ala. 622, 650, 65 So. 287, 295, of this statute it was said: 'The temporary right, and consequent limited immunity (State v. Simons, 145 Ala. 95, 40 So. 662), conferred by this statute, is necessarily incident to, and preliminary of, authorized proceedings to condemn, instituted by the entities mentioned therein. Manifestly the right thereby established is not conditioned-otherwise than upon an authoritative prerogative to exercise the power of eminent domain-upon any other contingency than that the corporations mentioned shall have in contemplation (not already instituted) proceedings to exercise the rights and powers to condemn. The obvious purpose of the statute was to allow preparatory, preliminary investigations and surveys in order to properly prepare for, and to intelligently invoke, condemnation proceedings. The right conferred is valuable and essential to the object it has in view."'

Of course, the statute does not undertake to, and does not justify or authorize any permanent injury to, or destruction of, standing timber, or trees, by the corporation so entering upon the land, in the exercise of this right of examination and survey conferred by the statute. To place such a construction upon the statute would make it violative of the plainest terms of section 235 of the Constitution, which protects the citizen in the enjoyment of his...